NGAMOKI v R [2022] NZCA 171

NGAMOKI v R [2022] NZCA 171 [9 May 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA692/2021[2022] NZCA 171BETWEEN RIKI WIREMU NGAMOKIAppellantAND THE QUEENRespondentHearing: 31 March 2022Court: Gilbert, Woolford and Dunningham JJCounsel: A S Bloem for AppellantJEL Carruthers for RespondentJudgment: 9 May 2022 at 9 amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)[1] The appellant, Riki Ngamoki, was sentenced to six years and three months'imprisonment for serious offending committed when he was 16 years old.1 During hissentence, he was convicted of two further offences and sentenced to an additional23 months' imprisonment.2 His counsel, Ms Bloem, argues his overall sentence ofeight years and two months' imprisonment is excessive to the point of being1 R v Ngamoki [2017] NZDC 7445.2 R v Ngamoki [2021] NZHC 2918 [High Court judgment]."crushing". She says the Judge was wrong not to reduce the sentence to reflect theprinciple of totality.[2] In comprehensive and thoughtful submissions, Ms Bloem makes the point thatsuch a sentence will have no real deterrence value and will almost certainly becounterproductive to her client's prospects of rehabilitation and reintegration.We agree. Nevertheless, having regard to the relevant provisions of the SentencingAct 2002, and to case law on the application of the totality principle, we can see noerror in the Judge's sentence.Background[3] When Mr Ngamoki was 17 years old, he was sentenced on three charges ofkidnapping, four charges of aggravated robbery, assault with intent to rob, escapingcustody, assault with intent to injure, and unlawfully taking a motor vehicle.3 From anoverall start point of 10 years and six months' imprisonment, the Judge afforded a20 per cent discount for youth and a 25 per cent discount for guilty pleas. No discountwas afforded for cultural factors. This led to an end sentence of six years andthree months. The Judge acknowledged that, at his age, this was a long sentence forMr Ngamoki. However, he expressed the hope Mr Ngamoki would be "given[the] opportunity to develop" while in prison and avoid further long prison sentences.4[4] While 20 years old, and still serving his sentence of imprisonment,Mr Ngamoki was involved in a violent group attack on two prisoners in a prisonexercise yard. One man was stabbed to death in the incident, while Mr Ngamoki andothers attacked the deceased man's associate, knocking him to the ground and thenrepeatedly kicking him.[5] A few months later, when Mr Ngamoki was 21, he launched, without warning,two punches at a Corrections officer who was escorting him to his cell. It tooksix officers to gain control of Mr Ngamoki and, during the struggle, the Corrections3 R v Ngamoki, above n 1.4 High Court judgment, above n 2, at [48].officer he assaulted sustained a broken finger. The officer also suffered a laceration tohis ear from the initial attack.[6] When sentencing Mr Ngamoki, Moore J adopted a starting point of two yearsfor the charge of injuring with intent to injure and added a further six months for thesecond offence. He then increased the sentence by three months to reflectMr Ngamoki's criminal history.5 From the total sentence of two years nine months'imprisonment, the Judge applied a seven per cent discount for youth and a 10 per centdiscount for late guilty pleas.6 He also applied a 10 per cent discount for culturalfactors, noting that:7Mr Ngamoki experienced dislocation from his whānau, disordered parentalattachments, antisocial role modelling and a dysfunctional childhood whichhas contributed not only to his gang affiliations, but his offending.[7] Counsel for Mr Ngamoki provided the Court with positive references fromfamily members and friends. While the Judge did not have evidence of successfulrehabilitative endeavours before him, he considered Mr Ngamoki's youth, andthe support he had from whānau and friends, meant he had some rehabilitativeprospects. A further five per cent discount was applied for that factor.8[8] Significantly, having reached an end sentence of 23 months, the Judgereminded himself he must consider the principle of totality saying, "I must not imposea sentence which may be appropriate when viewed in isolation, but is excessive tothe point of being crushing when viewed in its totality."9 However, on that issuethe Judge reached the following conclusion:10The purposes and principles of sentencing have to be balanced, and whilethere is a need to promote rehabilitation where possible, deterrence anddenunciation are also important. On my assessment and standing back andlooking at the sentence in its totality, I do not consider either of the sentencesto be excessive or crushing such that an adjustment for totality is needed.5 At [41], [43] and [52].6 At [63] and [66].7 At [76] and [77].8 At [69].9 At [82].10 At [84].Grounds of appeal[9] Ms Bloem focuses her arguments on the Judge's failure to make an adjustmentfor totality which, she submits, should have been 12 months. While not challengingthe individual discounts as inappropriate, she says they were insufficient to ensure thatMr Ngamoki's overall sentence was not manifestly excessive. In particular, she says:(a) Mr Ngamoki's age at the time of sentence warranted a greater reductionfor totality;(b) the Judge erred in prioritising the principles of deterrence anddenunciation over Mr Ngamoki's rehabilitation when consideringtotality; and(c) Mr Ngamoki's cultural background warranted a further adjustment tothe overall sentence when considering totality.Appellant's submissions[10] Ms Bloem commences her submissions by addressing the purpose of adjustinga sentence for totality. She cites s 85 of the Sentencing Act, which states thatcumulative sentences "must not result in a total period of imprisonment wholly out ofproportion to the gravity of the overall offending". In her submission, integral tothe totality principle is the idea of avoiding a "crushing" sentence. That is, one thatdestroys the expectation of a meaningful life after release.11 She submits therefore,the principle of totality aligns with a major purpose of sentencing, being "to assist inthe offender's rehabilitation and reintegration".12Youth as a special circumstance[11] In Ms Bloem's submission, the offender's personal circumstances, and inparticular his youth, must be taken into account in determining whether an end11 Mariko Bagaric and Theo Alexander "Rehabilitating Totality in Sentencing: From Obscurity toPrinciple" (2013) 36(1) UNSWLJ 139 at 151.12 Sentencing Act 2002, s 7(1)(h).sentence is crushing and requires a totality adjustment. Ms Bloem supports hercontention by reference to R v Mead,13 and R v Hurrell.14[12] In R v Mead, the defendant was already serving a sentence of seven years and11 months' imprisonment. Without an adjustment for totality, his end sentence wouldbe 10 years and two months' imprisonment. When considering totality, the Courtobserved that, at 24 years of age, the defendant was still young, and he had been inprison since he was 17 years old. Furthermore, his security classification had restrictedhim from accessing rehabilitative services in prison. After taking these factors intoaccount, the Court concluded his end sentence needed to be adjusted, bringing it downto nine years and five months' imprisonment.[13] In R v Hurrell, albeit in the context of a sentencing indication, the defendantwas charged with a further violence offence while he was in prison and when he was21 years of age. In that case, Moore J accepted that as the sentence would be imposedcumulatively on the existing sentence, he would need to take into account the principleof totality, particularly given Mr Hurrell's age.[14] Ms Bloem submitted that while the youth discount provided to Mr Ngamokiwas "arguably within range", further consideration needed to be given to his age inlight of totality. She pointed to the growing awareness of the role that an offender'sphysical, emotional and cognitive development has in the judicial context, and whichis increasingly reflected in how young people are treated by the criminal justicesystem. This was clearly acknowledged in Churchward v R, where youth wasrecognised as a mitigating factor.15 But there have been a number of developmentssince Churchward which are designed to further accommodate the developmentalimmaturity of young people. These developments include the extension of theYouth Court's jurisdiction to cover 17-year-olds and the creation of the Young AdultList, which is a recent judge-led initiative providing tailored support to those aged18 to 25 appearing in Court. Such innovations accommodate developmentalimmaturity at every part of the process, not just as a mitigating factor at sentencing.13 R v Mead [2019] NZHC 3065.14 R v Hurrell [2021] NZHC 2870.15 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.Despite such developments, Ms Bloem notes there are still many young people, likeMr Ngamoki, who continue to be treated in a similar fashion to their adultcounterparts. He has been exposed to adult imprisonment without any protectivemeasures, which can cause significant harm.[15] Finally, Ms Bloem notes that a totality reduction to reflect youth serves adifferent purpose from a youth discount, and thus there will be no double counting.When considering youth in the context of whether it is a mitigating factor,the assessment is focused on the diminished culpability of the defendant andrecognises their under-developed cognitive capacity and impulsive behaviour.In contrast, in the context of the totality principle, the consideration of youth relates towhat effect an extended sentence would have on someone who is young and whetherit would destroy their expectation of a meaningful life after release.The role of denunciation and deterrence[16] The second ground advanced by Ms Bloem questions the Judge's focus ondeterrence and denunciation. While Ms Bloem accepts that in cases of recidivistviolent offending in prison, principles of deterrence and denunciation may beprioritised, she says this need not always be the case. The underlying rationale forlonger sentences assumes they are effective at deterring offenders from offendingagain. However, research shows that imposing long sentences can have the oppositeeffect, resulting in more violent offending.16 This is particularly so wherethe offending is impulsive, as opposed to that which involves conscious planning, andwhere research indicates that youth have poorer impulse control and behaviourregulation than adults.17[17] Ms Bloem points out that the Courts are beginning to recognise the impact thatthe prison environment itself has on offending that occurs while in prison.In Vincent v R, this Court noted:1816 Sentencing Advisory Council Does Imprisonment Deter? A Review of the Evidence(Sentencing Advisory Council, Victoria, Australia, April 2011) at 18.17 Ben Johnson Do Criminal Laws Deter Crime? Deterrence Theory in Criminal Justice Policy:A Primer (Minnesota House Research Department, January 2019) at 5; and Elizabeth S Scott andLaurence Steinberg "Blaming Youth" (2003) 81(3) TexLRev 799 at 815.18 Vincent v R [2015] NZCA 201 at [64].We accept that the need to uphold prison discipline required a sentence ofsufficient severity to act as a deterrent against conduct of this kind, but someallowance should have been made for the frustrations that inevitably arisewhere inmates are forced together in close quarters over lengthy periods oftime with minimal periods allowed each day outside their cells.In that case, a six-month discount was allowed to reflect that Mr Vincent had becomeinstitutionalised. Similar recognition was given to the fact that incarceration canincrease the risk of further violent offending in R v Wereta,19 and Papa v R,20 (althoughin both cases, such recognition did not override the conventional view that violentoffending in prison should be met with a stern response). Ms Bloem submittedhowever, the punitive principles of denunciation and deterrence should notovershadow the importance of rehabilitation, particularly when the offender is youngand the offending impulsive.[18] Ms Bloem also referred to research which suggests that feelings of shame orinadequacy in young people can manifest themselves in violent behaviour.21Many serious offenders have been emotionally or physically abused during childhood,instilling overwhelming feelings of shame, inadequacy and humiliation.22 Violence isthen used as a defence mechanism by young people who have not been taught healthycoping strategies as children.23 Ms Bloem says the cultural report prepared under s 27for Mr Ngamoki suggests that his violent behaviour is caused, at least in part, bylongstanding feelings of shame, inadequacy and humiliation. Without meaningfulintervention addressing the underlying causes of Mr Ngamoki's violent behaviour,further imprisonment will not act as a deterrent. Instead, further punishment will likelyincrease feelings of humiliation and shame, thus continuing the cycle, andexacerbating violent behaviour.[19] Ms Bloem goes on to say this conclusion is supported by the rationale behindthe District Court's new Te Ao Mārama model. Central to that model is anacknowledgment that the District Court has overemphasised punishment atthe expense of rehabilitation. It recognises that punitive approaches to offending often19 R v Wereta [2015] NZHC 2248.20 Papa v R [2020] NZHC 80.21 James Gilligan "Shame, Guilt, and Violence" (2003) 70(4) SocRes 1149 at 1168.22 At 1153–1154.23 James Gilligan "Punishment and Violence: Is the Criminal Law Based on One Huge Mistake?"(2000) 67(3) SocRes 745 at 763–764.do not make communities safer, but actually can have the opposite effect.The prioritisation of punishment is particularly ineffective where offending is drivenby external causes such as addiction, mental health issues or past trauma.[20] Ms Bloem says Mr Ngamoki's cultural report talks positively about hisrehabilitative prospects, and the report writer recommends that a "trauma-informed"approach is adopted in his sentencing, reflecting his need to transition back intothe community where access to pro-social environments are readily available.By adjusting the sentence for totality, Mr Ngamoki would be given the opportunity tocommence his rehabilitation and reintegration into society sooner, and this betterprotects the community and the interests of victim as required by the provisions ofthe Sentencing Act.Relevance of cultural background[21] The third ground advanced by Ms Bloem for applying a totality reductionrelates to Mr Ngamoki's cultural background. The cultural report illustrates thatMr Ngamoki suffered from a very difficult and traumatic upbringing. He had littlestability in his life growing up and experienced dislocation from his whānau,disordered parental attachments, antisocial role modelling, and a dysfunctionalchildhood. His gang affiliation resulted from his search for a sense of belonging,having lacked stability as a child.[22] Ms Bloem points out that in Mr Ngamoki's original sentence, cultural factorswere not taken into account, and in the present sentence he was afforded only a10 per cent discount. Over the combined sentence this equates to a two per centdiscount to recognise cultural factors. In Ms Bloem's submission, the appellant'scultural background warranted a further adjustment to the overall sentence whenconsidering totality.Discussion[23] We start by observing that no challenge is taken to any aspect of sentencingother than the refusal to adjust for totality, nor do we consider there could be.Each component of this sentence was within range. While the deduction for youthwas modest, the Judge was more generous in his approach to rehabilitative potentialwhich is, of course, a factor associated with youth. The discount for factors identifiedin the cultural report was also within range having regard to other cases.24While Ms Bloem invited us to view the discount for cultural factors over the length ofthe combined sentence, we do not consider that appropriate. The sentence forthe earlier offending was not appealed and cannot be revisited by application ofthe totality principle in a subsequent sentencing exercise, as we were invited to do.[24] In our view, this appeal must be considered in light of the purpose of anadjustment for totality which is set out in s 85(2) of the Sentencing Act as follows:If cumulative sentences of imprisonment are imposed, whether individuallyor in combination with concurrent sentences, they must not result in a totalperiod of imprisonment wholly out of proportion to the gravity of the overalloffending.[25] This principle applies both to sentencing for proximate offending and also tocrimes committed while already in custody for other offences. As noted in Skipper vR, "the totality principle is not limited to sentencing on a single occasion for multipleoffences".25 The Court of Appeal in R v O noted that the policy behind s 85 was clear;while individual sentences needed to be decided in a manner that reflectedthe seriousness of each offence, the total sentence needed to be structured in a mannerthat avoided a wholly disproportionate result.26[26] In sentencing Mr Ngamoki, the Judge did not adopt the language of s 85, ratherhe considered whether the resulting sentence was "excessive or crushing".27While the term "excessive" is analogous to the phrase "wholly out of proportion",the term "crushing" focuses on the impact of the sentence on the offender, rather thanwhether the sentence reflects the gravity of the offending.24 In Moses v R [2020] NZCA 296, [2020] NZLR 583 a combined discount of 15 per cent wasafforded for the connection between the appellant's offending, her cultural background, and herprospects of rehabilitation. In Carroll v R [2019] NZCA 172 on a 12 year starting point for violentoffending, a discount of 18 months was allowed for a cultural report which showed her offendingwas linked to a violent upbringing which led her to seek refuge in gang culture, along with amodest credit for time spent on EM bail.25 Skipper v R [2011] NZCA 250 at [34].26 R v O CA258/05, 3 March 2006 at [19].27 High Court judgment, above n 2, at [84].[27] However, the consideration of whether a sentence is crushing is frequentlyused when deciding whether to adjust for totality. The term seems to have been firstused in R v Bradley, where this Court cited Principles of Sentencing, a text which setout a two-limb test for applying the totality principle.28[First] a cumulative sentence may offend the totality principle if the aggregatesentence is substantially above the normal level of sentences for the mostserious of the individual offences involved, or [second] if its effect is toimpose on the offender a crushing sentence not in keeping with his record andprospects.In that case, the Court concluded "[w]eighing these factors we are satisfied that anunusually long sentence is called for, but not one so long as to be crushing or to deprivethe prisoner of all hope."29 From this conclusion, other cases have adopted the test ofwhether a sentence is crushing when applying the totality principle. For example, anumber of decisions of this Court caution against cumulative sentences that wouldlead to a "crushing" result.30[28] However, a more critical approach was taken by Queensland Court of Appealin R v Schmidt, where Fryberg J discussed how the concept of a "crushing" sentencerelates to the totality principle.31 He observed that on a number of occasions,the Courts had employed the concept of a "crushing" sentence when consideringthe application of the totality principle. However, he pointed out there is a differencebetween the principle of totality and the avoidance of a crushing sentence.32For example, in R v Yates, Murphy J said the question of whether the sentence iscrushing on the offender "cannot be determinative of the real issue, which is, whetherthe sentence imposed is appropriate to the crime having regard to allthe circumstances".33 Similarly, in R v Smith ex parte Attorney-General, Chesterman Jwrote:3428 R v Bradley [1979] 2 NZLR 262 (CA) at 263, citing D A Thomas, Principles of Sentencing (2nded, Heinemann, London, 1979) at 57–58.29 At 264.30 Haywood v R [2015] NZCA 551 at [13]; Taylor v R [2018] NZCA 444 at [17]; Piao v R [2020]NZCA 607 at [22].31 R v Schmidt [2011] QCA 133, [2013] 1 Qd R 572.32 At [36], citing R v Barnes [2003] VSCA 156 at [31].33 R v Yates [1985] VR 41 (VCCA) at 49.34 R v Smith, ex parte Attorney-General (1998) QCA 220.I add deferentially, as an aside, my opinion that the essence of the principle isnot to avoid imposing a "crushing" sentence on the offender but rather toensure that the aggregate sentence fairly and justly reflects the total criminalityof the offender's conduct.[29] After reviewing a number of cases, Fryberg J concluded:35[t]he cases suggest that whatever meaning is attributed to "crushing", acrushing sentence may but need not be set aside. If that is so, then it cannotbe a proper ground of appeal simply to show that a sentence was crushing.Whether associating the word with the totality principle adds anything tothe standard requirement for the court to consider factors such as age,intellectual capacity and prospects for rehabilitation in relation to any sentenceor sentences which it may impose remains a matter for consideration.[30] That discussion leads us back to the central issue in any appeal whichchallenges the application of the totality principle, being whether the sentence imposedis wholly out of proportion to the gravity of the overall offending. The fact a sentenceis "crushing" may be indicative of that, but is not determinative.[31] In this case, we must consider whether the resulting eight year and two months'sentence was out of all proportion to the gravity of Mr Ngamoki's offending.It includes three charges of kidnapping, four charges of aggravated robbery and otherviolence offences, and then the subsequent violence offences committed ontwo separate occasions while in prison. This is serious offending and, looked at in itstotality, we consider the addition of a further 23 months for the two offencescommitted in prison is not disproportionate to the gravity of the offending.A 12-month totality adjustment, as advocated by Ms Bloem, would result in a sentencethat does not reflect the gravity of the recent violent offending in prison and would becontrary to the accepted principle that violent offending committed while in prisonshould attract a stern response.36 As was said in Waru v R:37 where an appellant has re-offended while in prison, the message from thisCourt has been clear and consistent. Such offending demands a stern responseparticularly where, as in this case, the offending goes to the maintenance ofdiscipline needed to manage a prison effectively.35 R v Schmidt, above n 32, at [40].36 Connelly v R [2010] NZCA 52 at [31]; Tryselaar v R [2012] NZCA 353 at [18]; Lake v R [2017]NZCA 39 at [7]; and Waru v R [2019] NZCA 347 at [31] and [32].37 Waru v R, above n 37, at [31] (footnotes omitted).[32] Furthermore, Mr Ngamoki has now nearly completed his initial sentence.He remains eligible for parole, even with the additional 23 months added to hissentence. This is not a case where his release date or potential release date is extendedso far into the future by the additional sentence that the penalty could be seen to bedisproportionate to the gravity of Mr Ngamoki's serious, violent offending.[33] Accordingly, we agree with Moore J that the test for a totality adjustment ins 85 was not met, and there was no error in the sentence imposed.Result[34] The appeal against sentence is dismissed.Solicitors:Bloem & Associates, Auckland for AppellantCrown Law Office, Wellington for Respondent